West Virginia Passes Law Prohibiting the Use of Seven Food Dye Ingredients

On March 24, 2025 Governor Patrick Morrisey of West Virginia signed into law H.B. 2354 which will impose a ban on the use of specified food additives, including seven food dyes, in food, drink, confectionery, or condiment products in the state. In passing this law, West Virginia became the first state to broadly ban food dyes, other than Red Dye No. 3, from foods sold broadly throughout the state.

The new West Virginia law is structured to take effect in two phases:

• Phase 1: Effective August 1, 2025, the law will ban the use of Red Dye No. 3, Red Dye No. 40, Yellow Dye No.5, Yellow Dye No. 6, Blue Dye No.1, Blue Dye No.2, and Green Dye No. 3 in any meal served in a school nutrition program.
• Phase 2: Effective January 1, 2028, the law will ban the manufacture for sale, offer for sale, or sale in West Virginia of any food product containing butylated hydroxyanisole, propylparaben, Blue Dye No. 1, Blue Dye No. 2, Green Dye No. 3, Red Dye No. 3, Red Dye No. 40, Yellow Dye No. 5, and Yellow Dye No. 6. Based on the structure of the law, it appears that foods containing these ingredients would be prohibited from being sold as of the effective date, regardless of their date of manufacture. The law establishes that violators will be found guilty of a misdemeanor subject to a fine not to exceed $500 or imprisonment of less than one year.

West Virginia’s actions come in the context of a larger trend of increased scrutiny of food and color safety, including specifically for food dyes. On January 15, 2025, FDA issued an order revoking authorizations for the use of FD&C Red No. 3 in food and ingested drugs. On October 7, 2023, California enacted California Assembly Bill 418, the California Food Safety Act, prohibiting the manufacture, sale, or distribution of food products in California containing BVO, Red Dye No. 3, potassium bromate, or propylparaben. Additionally, on September 28, 2024, California also passed Assembly Bill 2316, the California School Food Safety Act, which, like Phase 1 of the West Virginia law, prohibits the use of Red Dye No. 40, Yellow Dye No. 5, Yellow Dye No. 6, Blue Dye No. 1, Blue Dye No. 2, and Green Dye No. 3 in K-12 schools.

Covington will continue to monitor these activities and keep our clients and contacts updated.

If you have any questions concerning the material discussed in this client alert, please contact the members of our Food, Beverage, and Dietary Supplements practice.